Waqf (Amendment) Bill 2024 – Reform or religious transgression?

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The storm continues to brew over the Waqf (Amendment Bill), 2024. From Parliament to the state legislatures, there has been widespread debate and controversy over the Amendment Bill, perceived by many as an unwarranted attack on the Waqf Board and Muslims in India. Though it may be argued that the Waqf Board has been largely inefficient and embroiled in controversy in the recent years, the amendment seeks to bring some highly controversial changes which potentially violate Article 26 of the Constitution of India, infringing the fundamental right of the Muslims to manage and administer their own affairs.

To add to the controversy, the Tamil Nadu Assembly recently passed a resolution moved by the Chief Minister M.K. Stalin urging the Union Government to withdraw the Amendment Bill. The principal opposition party AIADMK has supported the resolution as well. The Amendment Bill has received severe opposition from other parties as well, including RJD, AIMIM, YSR Congress among others.

It may be baffling to read that the amendments to the Waqf Board, which has been reported to be highly inefficient and marred by controversy and litigation in the recent years, are being such widely opposed. In fact, several committees such as the Joint Parliamentary Committee on Amendments to the Waqf Act, 1995, Rajya Sabha and Report of the Select Committee on The Waqf (Amendment) Bill, 2010, Rajya Sabha, have highlighted several issues in the management of Waqf such as encroachment, pendency of cases in Waqf Tribunals, poor maintenance, unrealised revenue potential, lack of transparency and efficiency in conducting surveys etc. Therefore, the question arises - why is the Amendment Bill still being widely opposed? The opposition has been largely against the following provisions of the Amendment Bill.

First, the Waqf Act, 1995 mandated that the Central Waqf Council and the State Waqf Boards consist mostly of Muslims. However, the Amendment Bill has introduced a provision which allows appointment of non-Muslims to these bodies. In fact, the language of the provision opens the possibility that majority of the members in these bodies may be non-Muslims. The Waqf Act provided that four to eight members of the State Board were elected while four were nominated by the State Governments. However, under the Amendment Bill, all members could be nominated by the State Governments, including non-Muslims.

Second, the Waqf Act provided that any person, including non-Muslims could dedicate their properties to the Waqf. However, the Amendment Bill provides that the creator of Waqf can only be a person practising Islam for at least five years. Therefore, non-Muslims cannot dedicate any property to Waqf, as per the Amendment Bill.

Third, the Amendment Bill has brought a stark change to the composition of the Waqf Tribunal. The Waqf Act required the appointment of an expert in Muslim Law to the Waqf Tribunal. The Amendment Bill removes this requirement of appointment of a Muslim Law expert to the Tribunal. This amendment ignores the Sachar Committee Report in 2006 which noted that the Waqf bodies require experts having knowledge of Muslim Law for better functioning of the Waqf. Further, the Amendment Bill makes the decisions of the Waqf Tribunal amenable to the appellate jurisdiction of the High Court concerned, removing the finality of decision afforded under the Waqf Act.

Fourth, the Waqf Act provided that the Chief Executive Officer of the State Waqf Board shall be a Muslim officer equivalent to the rank of Deputy Secretary of the State Government. However, the Amendment Bill removes the requirement of the CEO to be a Muslim officer.

Lastly, the Amendment Bill empowers the government to take back any government land from the Waqf. The Collector of the area concerned shall identify the ownership of such land and submit a report to the State Government, who shall then take steps to claim possession of such land. The principal issue with this provision is that there have been instances where structures such as mosques, graveyards etc. have been built on government land. Hence, the fate of these structures is uncertain.

These amendments are peculiar, since other religions in India have been largely allowed to maintain autonomy over their religious bodies without any requirement of appointment of members of other religions to such bodies. For instance, legislations such as Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and Andhra Pradesh Charitable and Hindu Religious and Endowments Act, 1987 provide that all or majority members shall be Hindus. Similarly, the Sikh Gurdwaras Act of 1925 states that the Executive Committee must consist of all the Sikh members. Thus, the Amendment Bill raises pertinent questions about the intent of the legislature behind the Bill. Many provisions discussed herein may be deemed to be deliberate interference into the religious matters, potentially infringing upon the fundamental right for religious communities to administer and manage their own affairs guaranteed under Article 26 of the Constitution of India.

The entire saga would be very interesting to observe. The opposition to the Bill is increasing as each day passes, the time is ripe for the Union Government to address the concerns of the people.

(The author is an advocate practicing at the Supreme Court of India.)

Views are personal and do not represent the stand of this publication.